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The Judicial Committee of the Privy Council Decisions
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 UKPC 3
Privy Council Appeal No.11 of 2000
Herbert Ferguson Appellantv. The Attorney General of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIALCOMMITTEE OF THE PRIVY COUNCIL, Delivered the 24th January 2001
Present at the hearing:-Lord Bingham of Cornhill
Lord Hobhouse of Woodborough[Delivered by Lord Steyn] ------------------
1. On 4th May 1979 the appellant shot and killed Michael Pino in San Fernando, Trinidad. The deceased was one of a group of four men who tried to enter a discotheque but were refused entry. Their way was barred by the owner of the discotheque and two security guards, one of whom was the appellant. There was a heated argument. The accounts of the eye-witnesses as to what then happened differed. It is, however, common ground that the appellant drew his gun and shot Michael Pino at close range. Pino died in hospital the next day. On 21st May 1979 inquest proceedings began. On 7th June 1979, at the conclusion of the proceedings, the Coroner ruled that sufficient evidence existed to support a charge of murder against the appellant. The appellant was so charged and remanded in custody. On 8th June 1979 a preliminary enquiry into the charge against the appellant commenced before a magistrate. On 2nd August 1979, after hearing evidence and submissions, the magistrate committed the appellant to stand trial for the murder of Michael Pino. On 11th June 1981 the trial opened. On 23rd June 1981 the appellant was acquitted by the jury.
2. On 11th August 1982 the appellant filed a constitutional motion in which he alleged that both at the inquest and at the preliminary enquiry his rights under the Constitution of Trinidad and Tobago (enacted by Act No. 4 of 1976) were violated. In his motion the appellant relied on many provisions of the Constitution. But only sections 4, 5 and 14 are relevant. Section 4 so far as it is material provides:-
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall to continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:-
- the right of the individual to . . . liberty . . . and the right not to be deprived thereof except by due process of law;
- the right of the individual to . . . the protection of the law."
Section 5(2) so far as it is relevant reads as follows:-
"… Parliament may not - …
- deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
- deprive a person charged with a criminal offence of the right – . . .
(ii) to a fair and public hearing by an independent and impartial tribunal
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms."
3. The motion was filed pursuant to section 14 of the Constitution. The relevant subsections of that section provide as follows:-
"(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
"(2) The High Court shall have original jurisdiction -
(a) to hear and determine any application made by any person in pursuance of subsection (1), and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled."
The motion sought the following relief:-
"(a) a declaration that the arrest, detention and prosecution by the state of the said applicant for the charge of murder of Michael Pino is unconstitutional illegal void and of no effect.
(b) A declaration that the imprisonment of the applicant from 7th June, 1979 to the 23rd June, 1981, is unconstitutional, illegal void and of no effect.
(c) An order that monetary compensation be awarded to the applicant for the said unconstitutional and illegal imprisonment as mentioned above.
(d) All such orders, writs and directions as may be necessary or appropriate to secure redress by the applicant for a contravention of the human and fundamental freedom guaranteed to him by the constitution of Trinidad and Tobago."
4. The accompanying affidavit of the appellant explained that at the inquest only three eye-witnesses were called, namely Rampersad Ramdath, Rupert Taylor and Rajnath Rampersad. But, although the police had taken statements from other witnesses, namely Joy Charles, Ralph Martin, Reynold Brewster and Mohammed Khan, they were not called to give evidence nor were their statements disclosed to the appellant. The affidavit alleged that, except for Reynold Brewster, these witnesses supported the appellant's contention that he had acted in self-defence. The affidavit further asserted that at the preliminary enquiry the prosecution failed to call Rampersad Ramdath, Joy Charles, Reynold Brewster and Mohammed Khan. Moreover, the affidavit alleged that the prosecution "failed to make available the statements given by these witnesses to defence Counsel and/or failed to make available the above persons mentioned to defence Counsel as potential witnesses when their evidence was vital in conducting a proper enquiry." The affidavit stated that Ralph Martin had been called at the preliminary enquiry but pointed out that his statement to the police, which was inconsistent with his oral evidence, was not disclosed. The appellant alleged that "As a result of the omissions both at the inquest and enquiry I was committed to stand trial at the San Fernando Assizes and was remanded in custody."
5. The affidavit exhibited the statements, which had not been disclosed to the defence at the preliminary enquiry, as well as a record of the evidence of witnesses called and submissions made at the preliminary enquiry.
6. In response there was an affidavit from a barrister who had appeared for the prosecution at the preliminary enquiry which stated that he handed over copies of the relevant statements to the defence on 11th June 1981, i.e. the first day of the trial.
7. This was the state of the evidence and the shape of the case when it came before courts in Trinidad.
The decision of Lucky J.
8. In November 1995, after an astonishing delay of thirteen years from the filing of the motion, the matter came before Lucky J. for hearing. The judge gave judgment. His conclusion was that there was no duty to call the named witnesses or to disclose their statements at either the inquest proceedings or the preliminary enquiry. He held that there was no breach of the provisions of sections 4 or 5 of the Constitution. He dismissed the motion.
The decision of the Court of Appeal
9. The detailed and carefully reasoned judgment of the Court of Appeal was given by de la Bastide C.J. with whom Hamel-Smith J.A. and Jones J.A. agreed. The Court of Appeal held that at the inquest proceedings the Coroner was not obliged to call the witnesses or to disclose their statements. The Court of Appeal further concluded that there was also no obligation on the prosecution to call the four witnesses at the preliminary enquiry. But the Court of Appeal held that material which the prosecution is under a duty to disclose in an indictable case should be disclosed at or before the preliminary enquiry.
10. The Chief Justice explained this ruling and applied it to the present case in the following terms:-
"Fairness . . . which is said to be the key to the rules of disclosure, would seem to require that material which the prosecution is under a duty to disclose, should be disclosed in indictable cases at or before the preliminary inquiry (providing of course that it is available to the prosecution at that time). Even if it means breaking new ground, I would hold that that represents the common law position. Breach of that duty, however, does not automatically entitle an accused person to a remedy, whether by way of having a conviction quashed or under section 14 of the Constitution. In order to justify the granting of such relief the person complaining must prove that he has suffered prejudice. This he may do either by showing, that but for the non-disclosure he would not have been committed at all or that he would have been committed for a bailable instead of a non-bailable offence, typically manslaughter instead of murder, or that the failure to disclose at that early stage impaired in some significant way his chances of an acquittal at a subsequent trial at which he was convicted.
"Applying these principles to the facts of the present case, it seems to me that the prosecution was in breach of their common law duty of disclosure in failing to disclose all four statements to the defence at the preliminary inquiry. For the reasons, however, which I have already fully explained I consider that if they had been disclosed at that time, such disclosure would not have affected the outcome of the inquiry. In other words, there was no real prospect that armed with those statements, the defence could have avoided the making of the committal order which the magistrate did make, that is, for trial on the charge of murder. Accordingly, I hold that the appellant suffered no prejudice in the instant case and is not entitled to any remedy."
In a further observation on to the subject of disclosure the Chief Justice added:-
"I would qualify the duty to disclose at the preliminary inquiry stage by recognising that such disclosure may be postponed if this is considered necessary in order to avoid or reduce the risk of physical harm to the maker of the statement or his family. It is obviously a dictate of public policy that persons who have information about crimes should be encouraged to share it with the police. I would not, therefore, formulate any rule of disclosure which was so strict that it would put persons assisting the police in jeopardy before it becomes absolutely necessary to do so. I would emphasise however, that this qualification only justifies postponing disclosure until the trial."
11. The appeal was dismissed. Subsequently, in Director of Public Prosecutions v. McNicolls, 13th December 1999, unreported, the Court of Appeal of Trinidad and Tobago gave a judgment on disclosure to substantially similar effect.
The narrowing of the issues on appeal to the Privy Council
12. On appeal to the Privy Council Mr. Fitzgerald Q.C., leading counsel for the appellant, did not advance any argument relating to the failure of the relevant authorities to call witnesses at the inquest or at the preliminary enquiry, nor did he make submissions concerning the failure of the Coroner to disclose statements to the appellant. Their Lordships heard no argument on those matters. They are no longer in issue. Their Lordships do not propose to make any observations about those points. The only remaining issue relates to the failure to disclose the statements of the four witnesses before or at the preliminary enquiry.
The re-cast argument
13. The essence of the argument of the appellant before their Lordships was as follows. First, the earlier statement of Martin contained material inconsistent with his oral evidence at the preliminary enquiry. And the statements of Joy Charles, Reynold Brewster and Mohammed Khan contained material which was helpful to the appellant inasmuch as they contained references to the deceased advancing to the appellant with his hand in his pocket, that being also the appellant’s account. Their Lordships accept this step in the argument as substantially correct. Secondly, the prosecution’s failure to disclose these statements amounted to a breach of the common law duty of disclosure of the prosecution. For the purposes of this appeal their Lordships are prepared to accept this step in the argument but their Lordships wish to reserve their opinion on problems which may be created by subsequent changes in practice and procedure.
14. The third step of the argument is, however, the critical one. Counsel submitted that it follows as a matter of legal logic from the fact of the breach of the common law duty of disclosure that the appellant was deprived of his liberty otherwise than by "due process of law" and deprived of "the protection of the law" contrary to section 4(a) and (b) of the Constitution; and that he was deprived of his right to "a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations," contrary to 5(2)(e). Their Lordships are unable to accept this proposition. It can readily be accepted that the constitutional guarantees of due process, protection of the law, and a fair hearing are of generous width: see Minister of Home Affairs v. Fisher  AC 319, at 328H, per Lord Wilberforce. They are in principle capable of covering unfairness in the treatment of an accused at a preliminary enquiry. On the other hand, their Lordships are satisfied that the question whether there has been a breach of constitutional guarantees in respect of due process, protection of the law, and a fair hearing, must be approached in the light of the proceedings considered as a whole. This is the view which the European Court of Human Rights has consistently taken in respect of the fair hearing guarantee under article 6 of the European Convention on Human Rights: see Kraska v. Switzerland (1993) 18 E.H.R.R. 18, para. 30; Barberà, Messequé and Jabardo v. Spain (1988) 11 E.H.R.R. 360, para 68. A similar approach was recently enunciated by the Privy Council in Procurator Fiscal, Dunfermline and Her Majesty’s Advocate General for Scotland v. Brown, 5th December 2000, unreported, at p. 9, per Lord Bingham of Cornhill, and by the House of Lords in Regina v. Forbes,  2.WLR 1,13 para. 24, per the Appellate Committee. In the context of the Constitution of Trinidad and Tobago there is a close link between the three guarantees of due process, protection of the law and fair hearing since the fundamental concept of a fair trial is common to them all: compare Frank v. Mangum (1915) 237 U.S. 309, 347, cited with approval in Thomas v. Baptiste  2 AC 1, at 22C. There is therefore no reason to doubt that the issue whether there has been a breach under any of these guarantees must be judged on a realistic assessment of the proceedings considered as a whole. This view does not undermine those guarantees. On the contrary, the cause of human rights is served by concentrating on matters of substance and approaching with scepticism technicalities and causally irrelevant breaches.
15. If the matter is approached in this global way, the following factors must be taken into account in the present case. There is no longer any challenge to the inquest proceedings. Contrary to the assertion in the motion the order for the arrest and remand in custody of the appellant was properly made. If the appellant has a complaint it must be based on the conduct of the preliminary enquiry. The function of a preliminary enquiry is to ensure that no-one shall be brought to trial unless a prima facie case has been made out: Reg. v. Epping & Harlow Justices, Ex parte Massaro  Q.B. 433. It is conceded that there was sufficient evidence before the magistrate to establish a prima facie case of murder. The evidence included a written statement of the appellant in which he gave the following account:-
"One of the men, a fair one attacked me and at the same time pushing his hand in his pocket saying ‘I going to kill your ass’ I drew my service revolver and fired a shot at the man, he stopped and then he fell."
"When this man lunged at me and put his hand in his pocket, I believed he was going for some weapon, and for fearing that my life was in danger I fired a shot, because this man had been making uses of threats and cursing before."
16. Not surprisingly, at the preliminary enquiry the prosecution submitted that on the appellant’s own account there was still a prima facie case of murder. If the relevant statements had been handed over at the preliminary enquiry, and if the witnesses had been tendered for cross-examination, the magistrate would still have been bound to commit the appellant for trial on the charge of murder. Indeed it would have been perverse for the magistrate not to do so. And it is common ground that under the law in Trinidad, bail may not be granted in respect of a defendant charged with murder. Even if the statements had been handed over at the preliminary enquiry, the order of the magistrate would therefore have been exactly the same. And that order was a lawful one. Contrary to the suggestion in the motion, it is plain as a pikestaff that the committal and further remand of the appellant in custody were lawful.
17. If the complaint had been that the four statements had never been disclosed, and the appellant had been convicted, there would certainly have been a breach of the fair trial guarantee. Moreover, their Lordships would accept that if the statements had never been disclosed, but the appellant had nevertheless been acquitted, there could still have been a breach of the fair hearing guarantee. After all, in that event the appellant would have been exposed to the risk of conviction without access to the means by which he was lawfully entitled to defend himself. But that is not what happened in the present case. This is a case of late disclosure. The statements were only handed over on the first day of the trial. But it is not alleged that the presentation of the defence was in any way hampered by the late disclosure. On the contrary, their Lordships were told that at trial counsel for the appellant called two of the witnesses in question.
18. Cumulatively, the factors listed point in one direction only. Notwithstanding the late disclosure of the four statements in breach of the common law duty of disclosure, on a realistic assessment of the whole of the proceedings there was no breach of the constitutional guarantees of due process, protection of the law, and a fair hearing.
19. The extravagant claim in the motion that the arrest, detention, prosecution and imprisonment of the appellant was unconstitutional was not seriously persisted in on the appeal. But counsel for the appellant argued that the appellant is nevertheless entitled to compensation to mark the violation of his constitutional rights. This argument fails because no breach of any of the constitutional guarantees relied on has been established.
The alternative argument
20. In oral argument Mr Mendes, junior counsel for the appellant, advanced a different argument. Putting to one side the overarching guarantees of due process, protection of the law, and fair hearing, he submitted that the Constitution guarantees fair disclosure in a criminal case. Accordingly, he submits any material breach of the duty of disclosure, both as to extent and timing, in principle gives rise to a right to compensation under section 14. This argument requires careful analysis. Their Lordships certainly accept Mr Mendes’ submission that justice in criminal proceedings necessarily requires timeous and fair disclosure of documentary and other material relevant to the charge. In this sense such disclosure is inseparably connected with the guarantees of due process, protection of the law, and fair hearing. A failure to provide disclosure may therefore, depending on the context and circumstances, be evidence tending to establish a breach of such constitutional guarantees.
21. It does not follow, however, that there is a guarantee of disclosure under the Constitution. It is clear that there is no express guarantee of this kind under the Constitution. Mr Mendes submitted that a guarantee of timeous and fair disclosure must be implied into the Constitution in order to give practical effect to the general guarantees. He drew their Lordships’ attention to the decision of the Privy Council in Attorney-General of Trinidad and Tobago v. Whiteman  2 A.C. 240. In that case a question arose whether from an express guarantee under section 5(2)(c)(ii) of the Constitution, viz the right of a person arrested or detained to communicate with a legal adviser, there could be implied a right to be so informed. The Attorney-General argued that there was no such implied right. Giving the judgment of the Judicial Committee Lord Keith of Kinkel observed at page 247E:-
"The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights. In this case the right conferred by section 5(2)(c)(ii) upon a person who has been arrested and detained, namely the right to communicate with a legal adviser, is capable in some situations of being of little value if the person is not informed of the right. Many persons might be quite ignorant that they had this constitutional right or, if they did know, might in the circumstances of their arrest be too confused to bring it to mind."
22. Accordingly, it was one of the grounds of the decision of the Privy Council that "by necessary implication" the accused was entitled to be informed of his right. Lord Keith observed at page 248A: "A procedure which exists only on paper, and is not put into practice, does not give practical protection". The implication was based on the view that without it the express guarantee would be worthless. This decision certainly shows that, where truly necessary, constitutional guarantees may be fleshed out by implication. But Whiteman was a much stronger case for an implication. Here there is no obvious gap.
23. The common law duty of timeous and fair disclosure as explained by the Chief Justice ensures fairness to the accused. And there are in principle effective remedies for breaches inasmuch as appropriate orders can be sought from trial judges and in the High Court. If, despite this safety net, cases of demonstrable unfairness in failure to disclose relevant material appear they can be corrected on appeal or, where appropriate, by invoking a remedy under the general guarantees of due process, protection of the law, and fair hearing under the Constitution.
24. Both counsel for the appellant referred their Lordships to observations of the European Court of Human Rights that the European Convention must be approached as a living instrument in the conditions of today. They invited their Lordships to approach the Constitution of Trinidad and Tobago in the same way. Their Lordships accept this general proposition. But it does not warrant an implication of the kind contended for where none is needed. And their Lordships emphasise again that the Court of Appeal has accepted fairness as the guiding principle. In this context "the great principle is that of open justice": see Reg. v. Brown (Winston)  AC 367, at 374G, per Lord Hope of Craighead. Any substantial unfairness in the application of the common law duty of disclosure, which is revealed by particular cases, is therefore capable of being corrected where necessary. Approaching the Constitution as a living instrument does not therefore justify the proposed implication.
25. In these circumstances their Lordships are satisfied that there is no implied right of disclosure under the Constitution. The terrain is satisfactorily covered by the general guarantees under the Constitution and the common law principles of disclosure.
26. Counsel for the appellant invited their Lordships to grant a declaration affirming the right to receive disclosure before or at the preliminary enquiry. Given the terms of the judgment of the Court of Appeal, and the decision of their Lordships, such a declaration would be pointless. In any event, since no constitutional right has been infringed, the appellant is not entitled under section 14 to such a declaration.
27. Their Lordships dismiss the appeal.
28. Counsel for the Attorney-General informed their Lordships (a) that the orders of costs made by the courts in Trinidad against the appellant will not be enforced and (b) that the Attorney-General sought no order for costs on appeal to the Privy Council. No order of costs is therefore necessary.